United States District Court, N.D. California
JEWEL E. DYER, Petitioner,
JAIL CAPTAIN TIMOTHY PEARCE, Respondent.
ORDER DENYING MOTIONS FOR LEAVE TO PROCEED IN FORMA
PAUPERIS; ORDER OF DISMISSAL
NATHANAEL M. COUSINS United States Magistrate Judge.
a state pre-trial detainee proceeding pro se, seeks a writ of
habeas corpus pursuant to 28 U.S.C. §
2241. Petitioner has submitted a certificate of
funds showing that the average deposits to his account for
the last six months is $24.00, and the average balance in his
account for the last six months is $24.22. Therefore,
Petitioner's motions for leave to proceed in forma
pauperis are DENIED. Petitioner must pay the $5.00 filing
fee. For the reasons stated below, Court dismisses the
to the petition, in March 2016, Petitioner was charged in
Mendocino County Superior Court with first degree murder. He
has filed two unsuccessful state habeas petitions in Superior
Court. Petitioner filed the instant petition on March 21,
Standard of Review
28 U.S.C. § 2241, the district court may grant a writ of
habeas corpus when a petitioner is “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). A district
court considering an application for a writ of habeas corpus
shall “award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or
person detained is not entitled thereto.” 28 U.S.C.
§ 2243. Summary dismissal is appropriate only where the
allegations in the petition are vague or conclusory, palpably
incredible, or patently frivolous or false. See Hendricks
v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
to the petition, Petitioner claims that a warrant was issued
without probable cause. However, Stone v. Powell,
428 U.S. 465, 481-82, 494 (1976), bars federal habeas review
of Fourth Amendment claims unless the state did not provide
an opportunity for full and fair litigation of those claims.
All Stone v. Powell requires is the initial
opportunity for a fair hearing. Such an opportunity for a
fair hearing forecloses this Court's inquiry upon habeas
petition into the trial court's subsequent course of
action, including whether or not the trial court made any
express findings of fact. See Caldwell v. Cupp, 781
F.2d 714, 715 (9th Cir. 1986). The existence of a state
procedure allowing an opportunity for full and fair
litigation of Fourth Amendment claims, rather than a
defendant's actual use of those procedures, bars federal
habeas consideration of those claims. See Newman v.
Wengler, 790 F.3d 873, 880 (9th Cir. 2015). Thus, this
claim is DISMISSED.
remainder of Petitioner's petition challenges the
conditions of his confinement in Mendocino County Jail.
Specifically, Petitioner states that “officers and
friends slandered me about having std's, extreme bias,
neglected sensitive medical conditions!” Petitioner
also states, “no health care, deliberate indifference,
privacy, toxic facility water, illegal kiosk, illegal
telephones, illegal denial of courts. Religious diet blocked,
no access to programs, imminent injury.” These claims
are improper in a habeas petition.
to the lawfulness of confinement or to particulars affecting
its duration are the province of habeas corpus.'”
Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting
Muhammad v. Close, 540 U.S. 749, 750 (2004)).
“An inmate's challenge to the circumstances of his
confinement, however, may be brought under §
is the “exclusive remedy” for the prisoner who
seeks “‘immediate or speedier release'”
from confinement. Skinner v. Switzer, 561 U.S. 521,
525 (2011) (quoting Wilkinson v. Dotson, 544 U.S.
74, 82 (2005)); see Calderon v. Ashmus, 523 U.S.
740, 747 (1998); Preiser v. Rodriguez, 411 U.S. 475,
500 (1973). “Where the prisoner's claim would not
‘necessarily spell speedier release, ' however,
suit may be brought under § 1983.'”
Skinner, 561 U.S. at 525 (quoting
Wilkinson, 544 U.S. at 82). In fact, a Section 1983
action is the exclusive remedy for claims by state prisoners
that do not “lie at the ‘core of habeas
corpus.'” Nettles v. Grounds, 830 F.3d
922, 932 (9th Cir. 2016) (en banc) (quoting Preiser,
411 U.S. at 487).
a district court may construe a habeas petition by a prisoner
attacking the conditions of his confinement or some other
condition that he contends violates his constitutional rights
as pleading civil rights claims under 42 U.S.C. § 1983,
see Wilwording v. Swenson, 404 U.S. 249, 251 (1971),
the Court declines to do so here. The difficulty with
construing a habeas petition as a civil rights complaint is
that the two forms used by most prisoners request different
information and much of the information necessary for a civil
rights complaint is not included in the habeas petition filed
here. Examples of the potential problems created by using the
habeas petition form rather than the civil rights complaint
form include the potential omission of intended defendants,
potential failure to link each defendant to the claims, and
potential absence of an adequate prayer for relief.
Additionally, there is doubt whether the prisoner is willing
to pay the civil action filing fee of $400.00 rather than the
$5.00 habeas filing fee to pursue his claims. The habeas
versus civil rights distinction is not just a matter of using
different pleading forms. It is not in the interest of